Anticipation of Litigation Advisor

EMOJIS AND E-DISCOVERY: AN UNSETTLED LEGAL LANDSCAPE

November 27, 2019

Emojis—small symbols used to enhance meaning in electronic communications—are a significant new development in our ongoing communication revolution. The word “emoji” originates from Japan and means “picture character.”[1] The Oxford English Dictionary defines “emoji” as a “small digital image or icon used to express an idea, emotion, etc., in electronic communications.”[2] Over the past few years, emoji usage has exploded in digital communication: “Ninety-two percent of the online population uses emojis, and 2.3 trillion mobile messages incorporate emojis in a single year.”[3] According to Unicode (a computer industry standard-setting organization that tracks and classifies emojis), there were 2,823 officially recognized emojis as of 2018.[4]

Why are emojis so popular? In face-to-face conversation, body language, facial expressions, and vocal tone comprise a great degree of the message being communicated.[5] However, this personalization is often lost in written communication. With the recent explosion in popularity of text messaging as a primary means of correspondence, our conversations have become increasingly condensed and abbreviated. Emojis have stepped in to add tone, intent, and even meaning, to short text messages.[6]

Our increased reliance on emojis has created new challenges for the legal industry. Although emojis were designed to clarify the author’s intent or emotion in a message, emojis can also cause confusion because popular emojis can register differently across different communication platforms.[7] Depending on the digital platform or device used, the recipient of the emoji may receive a different symbol or image than the sender intended.[8] This lack of uniformity can present unique problems for lawyers trying to determine the sender’s intent or to preserve and interpret the data.[9]

In e-discovery, lawyers often must search thousands of electronic documents for specific terms or phrases designed to locate relevant information.[10] But searching for specific content expressed through emojis can be a challenge due to the variety and complexity of emojis in comparison to written text.[11] Emojis are not only difficult to interpret and find, but they present a challenge when lawyers must decipher the context of an emoji in a particular message.[12] For example, some emojis are accompanied by animation or movement, which means that a “static screenshot may not do justice to something that was originally presented as a dancing ferret.”[13] Even if a lawyer can correctly identify and preserve the emoji, the meaning of the emoji cannot always be known. For example, two friends may designate a particular meaning to a certain emoji, such as to designate an inside joke.

With the increasing prevalence of emojis in modern communication, emojis are being used more frequently in the workplace, too.[14] Emojis are a great communication tool, but they can create headaches for companies and their lawyers when it comes to managing electronically stored information. For example, can a deal be accepted with “thumbs up” or “ok” emoji? Sending a “winkie face” or “heart” emoji may be innocuous in some situations, but they can also convey an improper message in other scenarios. To prevent potential issues with emoji usage in the workplace, companies should adopt clear guidelines regulating use of emojis on corporate devices.[15] E-discovery lawyers must also be prepared to address issues that may arise with the identification, interpretation, preservation, and production of communications containing emojis. If emojis are identified in the discovery process, lawyers will need to consult with their clients to clarify any issues of intent or context.[16] Although emojis are a new phenomenon and unsettled in the legal landscape, one thing is certain: emojis are here to stay.

[1] Eric Goldman, Emojis and the Law, 93 Wash. L. Rev. 1227, 1231 (2018).
[2] Id.; see also Emoji, OED.com, https://www.oed.com/viewdictionaryentry/Entry/389343 (last visited Nov. 22, 2019).
[3] Id. at 1229 (citations omitted) (emphasis added).
[4] Diana C. Manning & Kathryn B. Rockwood, Emoticons and Emojis: Hazards to Be Aware of in Discovery, 317 N.J. Law. 68, 69 (April 2019).
[5] Id.
[6] Id. at 68.
[7] Frank Ready, Emoticons Plus E-discovery Preservation Equals Frowny Face, Law.com (Nov. 4, 2019, 9:30 AM), https://www.law.com/legaltechnews/2019/11/04/emoticons-plus-e-discovery-preservation-equals-frowny-face/.
[8] Id. at 70.
[9] Id.
[10] Manning & Rockwood, supra note 4, at 72.
[11] Id.
[12] Ready, supra note 8.
[13] Id.
[14] Id.
[15] Id.
[16] Manning & Rockwood, supra note 4, at 72.

Attorneys

Blair Wessels